Cameron v Lake Macquarie City Council

Mr I J Hemmings, who appears for the respondent, submits that the appeal is incompetent for the reason that an appeal under s 97 of the EP&A Act may only be made with respect to a development application, that an application to remove trees is not a development application and the removal of trees is not development. Accordingly, it is his submission that no right of appeal lies against the respondent's refusal to consent to an application to remove trees.

The submission is dependent upon the terms of s 97 and the definition of " development " in s 4. Section 97 provides: (1) An applicant who is dissatisfied with the determination of a consent authority with respect to the applicant's development application (including a determination on a review under section 82A) may appeal to the Court .... "

Section 4 defines " development " as follows: 'Development' means:

(f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument,

but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.

The definition requires reference to s 26. That section provides that an environmental planning instrument may make provision for or with respect to a number of listed matters, including " protecting or preserving trees or vegetation ".

The relevant environmental planning instrument in the present case is Lake Macquarie Local Environmental Plan 1984, clause 8 of which provides: The Environmental Planning and Assessment Model Provisions, 1980 (other than the definitions of 'dwelling house' and 'map' in clause 4(1)), and other than clause 34; are adopted for the purpose of this plan .

Clause 8 of the Environmental Planning & Assessment Model Provisions (" the Model Provisions ") provides: (1) Where it appears to the council that it is expedient for the purpose of securing amenity or of preserving existing amenity, it may, for that purpose and by resolution, make an order (hereinafter referred to as a 'tree preservation order') and may, by like resolution, rescind or vary any such order.

(2) A tree preservation order may prohibit the ring-barking, cutting down, topping, lopping, removing, injuring or wilful destruction of any tree or trees specified in the order except with the consent of the council and any such consent may be given subject to such conditions as the council thinks fit.

(3) A tree preservation order may relate to any tree or trees or to any specified class, type or description of trees on land described particularly or generally by reference to the Local Government area or any divisions thereof.

(4) The Council shall forthwith upon the making of a tree preservation order cause notice of the making of the order to be published in the Gazette and in a newspaper circulating in the area in which the land described in the order is situated.

(5) A person who contravenes or causes or permits to be contravened a tree preservation order shall be guilty of an offence.

(7) ... 10. The Council has pursuant to clause 8 of the Model Provisions published in the New South Wales Government Gazette a tree preservation order which prohibits the cutting down of trees as specified in the order except with the consent of the Council.

Mr Hemmings submits that all that the environmental planning instrument does is enable the Council to make a tree preservation order; the prohibition against the cutting down of trees except with the consent of the Council is controlled by the tree preservation order and not by the environmental planning instrument; and a tree preservation order is not an environmental planning instrument ( Hornsby Shire Council v Clyne , Talbot J, NSWLEC, 29 October 1998, unreported). According to the submission, since the cutting down of trees is not controlled by an environmental planning instrument then it is not within the definition of " development ". If it is not " development " then it cannot be the subject of a development application, neither can it be the subject of an appeal under s 97.

I have noted the reliance by Mr Hemmings on Hornsby Shire Council v Clyne , in which Talbot J held (at paras [13] and [14]) that a tree preservation order is not an environmental planning instrument and that a breach of the tree preservation order in that case could not be a breach of ss 75 and 76 of the Act, as it then stood. Section 75, which has since been omitted from the Act, stated, " In this Part, a reference to development includes a reference to any other act, matter or thing referred to in s 26 which is controlled by an environmental planning instrument " (see now paragraph (f) of the definition of " development " which I have set out in para 6 above). In Mr Hemmings' submission, the judgment of Talbot J supports his assertion that the matters controlled by a tree preservation order are not within the definition of " development ".

Talbot J referred to and distinguished the judgment of Bignold J in Hornsby Shire Council v Winsloe (1998) 101 LGERA 117. That case also concerned the breach of a tree preservation order. Bignold J held (at 134) that for the purpose of a prosecution under s 125 of the EP&A Act, the relevant prohibition is sourced in clause 8 of the Hornsby Local Environmental Plan 1984 rather than in the terms of the tree preservation order. Clause 8 of the Hornsby Local Environmental Plan was similar to, but not identical with, clause 8 of the Model Provisions. There was, however, no equivalent in clause 8 of the Hornsby Local Environmental Plan to subclause (5) of the Model Provisions.

Neither Talbot J nor Bignold J referred to my earlier judgment in Meriton Apartments Pty Ltd v Ryde City Council (NSWLEC, 30 April 1998, unreported). In that case the tree preservation order in question was made under clause 41 of the Ryde Planning Scheme Ordinance, a similar provision to clause 8 of the Model Provisions. I held that clause 41 of the Ryde Planning Scheme Ordinance was part of the relevant environmental planning instrument and that the prohibition against destroying or harming trees is not contained in the executive order made by the Council but is contained in the instrument, namely, subclause (5) of cl 41: " A person who contravenes or causes or permits to be contravened a tree preservation order shall be guilty of an offence ". I then held that the destruction or harming of a tree is an act matter or thing " controlled by an environmental planning instrument ".

I see nothing in either Hornsby Shire Council v Clyne nor in Hornsby Shire Council v Winsloe to persuade me to depart from my conclusion in Mertion Apartments Ltd v Ryde City Council . In the present case clause 8 of the Model Provisions is incorporated into the Lake Macquarie Local Environmental Plan 1984 and contains subclause (5) which, as noted in paragraph 13 above, is a provision which was absent from the Hornsby Shire Local Environmental Plan considered by Talbot J and Bignold J.

In my opinion, the presence of subclause (5) in the environmental planning instrument in this case means that the tree preservation order is " an act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument " and is thus " development " as defined in s 4. The expanded definition of " control " in s 4 lends support to this view: Control , in relation to development or any other act, matter or thing, means:

(a) consent to, permit, regulate, restrict or prohibit that development or that other act, matter or thing, either unconditionally or subject to conditions, or

(b) confer or impose on a consent authority functions with respect to consenting to, permitting, regulating, restricting or prohibiting that development or that other act, matter or thing, either unconditionally or subject to conditions.

Finally on this question, in Dames and Moore Pty Ltd v Byron Council [2000] NSWLEC 46, Bignold J held at [23] that the cutting down and removal of trees relevantly constitutes the carrying out of development that requires development consent under the EP&A Act, in a case in which the relevant local environmental plan incorporated cl 8 of the Model Provisions and there was a tree preservation order. Bignold J relied upon the definition of " development " to which I have referred (s 4 EP&A Act) and s 76A of the Act.

My conclusion therefore is that since the tree preservation order in this case is made pursuant to clause 8 of the Model Provisions, and since clause 8(5) is relevantly a restriction or prohibition which is contained in the local environmental plan, it follows that the cutting down of trees is an act, matter or thing referred to in s 26 that is controlled by the environmental planning instrument and is thus within the definition of " development ". It follows that I reject the submission of Mr Hemmings that the making of an application to cut down trees cannot be the subject of a development application and thus cannot be the subject of an appeal under s 97 of the EP&A Act.

The next question relates to the form of the application which was made to the Council. As noted above, the application was made on a form issued by the Council for the purpose and is headed " Application to Lop/Remove Trees ".

Clause 46A of the Environmental Planning & Assessment Regulations 1994 relevantly states: 46A(1) A development application: (a) must be in Form 1, and

(b) must be accompanied by the information required by Form 1, and

The application form issued by the Council and which had been filled in and lodged with the Council in this case is not in the form of Form 1. It nevertheless obviously contains the information required by the Council on an application to cut down trees, otherwise the Council would not have prepared and issued the form to persons wishing to make applications to cut down trees. It is, as I have noted, a standard form. It requires information as to whether permission is requested to lop or remove trees, details of the property on which the tree is located, details of the applicant and details of the proposal (including the number of trees, the work proposed and the reasons for the work). In the present case the application form was submitted to the Council with a detailed report by an arborist.

If the Council was of the opinion that the information contained in the form and in the attached arborist's report was insufficient, it could have requested the applicant to provide additional information, as it was entitled to do (clause 48 of the Environmental Planning & Assessment Regulation). The fact that the Council did not do so further suggests that the form and the information contained within it and attached to it in the arborist's report was sufficient for the Council's purposes. It has long been settled law that strict compliance with a prescribed form is not necessary but substantial compliance is sufficient (s 80 Interpretation Act 1987, s 4(9) EP&A Act). In the present case there has been substantial compliance with the requirements of Form 1. Moreover, I adopt what was said by Else-Mitchell J in Hornsby Shire Council v Devery (1965) 12 LGRA 34 at 40: But where as here, [the Council] has elected to treat as complete and valid and regular an application which is deficient, I think that it cannot subsequently seek to deprive an applicant of the rights, positive or negative, which flow from the grant or refusal of any necessary consent for which the application was made.

In my opinion, it does not lie in the Council's mouth to now complain that the form on which the application was made to cut down the trees is deficient, when it itself furnished that very form to the applicant and which contains all the necessary information which the Council must have considered sufficient to enable it to process the application to cut down trees. Accordingly, I reject Mr Hemmings' submission that the application is not a valid application because of a failure by the applicant to make the application on the prescribed form.

The next issue raised by Mr Hemming arises from the fact that the application form is signed by the owner's agent, rather than by the owner himself. Under the agent's signature on the form is the following statement: Note: Owners' consent previously supplied to Council as part of applications for new dwelling and boundary adjustment.

It is apparent that the removal of the three trees arises as a consequence of the other two development applications and particularly the application for the erection of the new dwelling. Mr Hemmings nevertheless submits that the application was not valid because it was not made by the owner of the land to which the application relates, as required by clause 46 of the Environmental Planning & Assessment Regulation.

The statement of environmental effects which accompanies the development applications for subdivision and for the erection of a new dwelling describes the proposal to remove the three trees and refers to the arborist's report, a copy of which was also included. It is clear that the three applications are all related. This is confirmed by a letter sent by the Council to the applicant on 19 May 1999, following the lodgment of the applications, which states: Thank you for your application seeking Council's consent to remove three (3) trees for remedial stabilisation work on the rock face of the abovementioned property.

You are advised that consent for the removal of the three (3) trees can not be given at this time, as it depends on Council's evaluation of your development application recently submitted for this property.

In Mulyan Pty Ltd v Cowra Shire Council [1999] NSWLEC 212 I held (at [16]) that the consent in writing of the owner of the land to which a development application relates need not be executed upon the prescribed form, but may be contained in another document. In the present case the application form refers to the owner's consent previously supplied to the Council as part of the application for the new dwelling and the subdivision. All three applications are, as I have noted in paragraph 25 above, related applications. Moreover, as I have also noted, the applications for the dwelling and for the subdivision include reference (in the statement of environmental effects in each case) to the proposal to remove the three trees the subject of the present application. It was not contended by Mr Hemmings that the consent of the owner was not supplied to the Council as part of those applications (which are not in evidence). It is clear that in consenting to the making of those development applications the owner was consenting to the proposal to remove the three trees, the removal of which is stated to be part of the overall development of the subject land. The evidence in this case satisfies me that the owner of the land to which the development application relates has consented to the making of the application.

For the abovementioned reasons, the Council's notice of motion for an order that the appeal be struck out must be dismissed.

The final question is whether there should be an order for the costs of the notice of motion. Although the Council's notice of motion includes a claim for costs, Mr Hemmings submitted that no order should be made. In his submission the practice direction which applies to costs in planning and building appeals should also apply to the notice of motion, which in effect is no different from the separate determination of preliminary questions of law in such appeals. The relevant practice direction states: "t he practice of the Court is that no order for costs is made in planning and building appeals unless the circumstances are exceptional ". Mr J J Bingham, appearing for the applicant, submits that if the notice of motion is dismissed then the applicant should receive an order for costs.

In Outdoor Australia Pty Ltd v Auburn Council (1996) 89 LGERA 365, Pearlman J said (at 369) that " The practice direction was made to encourage dissatisfied parties to seek review of planning and building decisions by councils without the risk of costs if unsuccessful ". Pearlman J said that preliminary questions of law heard and determined in development and building appeals will not necessarily follow the event but will themselves be governed by the practice direction and accordingly will not be subject to an order for costs unless the circumstances are exceptional.

The notice of motion came before me as an application to strike out the appeal as incompetent rather than as the separate determination of a preliminary question of law. I am nevertheless prepared to assume that it is, in substance if not in form, a claim for relief which is to a similar effect as the separate determination of a preliminary question of law. I therefore approach the question of costs as if the practice direction applies.

In my opinion the circumstances are sufficiently exceptional to justify the making of an order for costs against the Council. Those circumstances are: (a) the unfounded assertion by the Council that the application was not a development application, notwithstanding clear authority within the Court to the contrary; (b) the allegation by the Council that the application form to lop/slash/remove trees was deficient both in form and in substance, despite the fact that it had itself issued the form for use by the applicant (and presumably for use by others as well); and (c) the assertion that the application was deficient in that it lacked the owner's consent. In relation to (c) above, the Council did not raise the alleged absence of the owner's consent in its letter of 19 May 1999 to the application which I have described in paragraph 25 above, nor in a subsequent letter dated 11 October 1999 in which it asserts that the application is not a development application. In my view the abovementioned circumstances amount to exceptional circumstances within the meaning of the practice direction.

I therefore make the following orders: 1. The respondent's notice of motion dated 3 November 1999 is dismissed.

2. The respondent must pay the applicant's costs of the notice of motion.

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